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HomeMy WebLinkAboutStradling Yocca Carlson & Rauth, a Professional Corporation - 2015-12-15 BOND COUNSEL.AGREEMENT CITY OF HUNTINGTON BEACH Community Facilities District NO. 2001-1 (Grand Coast Resort) THIS AGREEMENT, made as of this 15t' day of December, 2015, by and between the CITY OF HUNTINGTON BEACH, a chartered city and municipal corporation organized and existing under the laws of the State of California (herein "City") and STRADLING YOCCA CARLSON & RAUTH, a Professional Corporation(herein"Bond Counsel"): RECITALS: A The City has previously formed Community Facilities District NO 2001-1 (Grand Coast Resort) (the "Distract") and the District issued its 2013 Special Tax Bonds (the "Bonds") pursuant to the Mello Roos Community Facilities Act of 1982 and the City's Charter (collectively, the"Act"); and B The fee simple interest in the land in the District is currently owned by the Successor Agency to the Redevelopment Agency of the City of Huntington Beach (the "Successor Agency") which leases all of the land in the District to the PCH Beach Resort, LLC, a California limited liability company (the "Lessee"). The Bonds are payable from special taxes levied on the leasehold interest of the Lessee in the District. In accordance with the wind down of the former redevelopment agency, the Successor Agency desires to sell its fee interest in the land in the District to the Lessee. The City desires to retain Bond Counsel to do the necessary legal work hereinafter outlined in order to revise the rate and method of apportionment of the special taxes in the District to tax the fee simple interest in the land rather than the leasehold interest (the "Change Proceedings") and to make such other changes to the legal documents related to the Bonds to effectuate such changes (the"Bond Amendments") and to make certain secondary market disclosures to the owners of the Bonds describing such changes(the "Secondary Market Disclosures"); and C Bond Counsel represents that it is ready,willing and able to perform said legal work; NOW, THEREFORE, in consideration of the premises, and the mutual covenants, terms and conditions herein contained,the parties agree as follows- 1 SCOPE OF SERVICES A. Services Related to the Change Proceedings the Bond Amendments and the Secondary Market Disclosures Bond Counsel agrees to provide legal services in connection with Change Proceedings, the Bond Amendments and the Secondary Market Disclosures Bond Counsel's services will include: 1. Researching applicable laws and ordinances relating to the Change Proceedings; DOCSOC/1732652v 1/022273-0008 Stradhng Yocca Carlson&Rauth Page 2 of 6 ii. Attending conferences and consulting with City staff and the City Attorney regarding such laws, and the need for amendments thereto, or additional legislation; iii Participating in meetings, conferences or discussions with any financial advisors, underwriters or other experts retained by the City with respect to the Change Proceedings, the Bond Amendments and the Secondary Market Disclosures; iv. Supervising and preparing documentation of the steps to be taken with respect to the proposed the Change Proceedings, the Bond Amendments and the Secondary Market Disclosures, including: a Drafting all resolutions, notices, rules and regulations, agreements and other legal documents related to the Change Proceedings and the Bond Amendments; b Preparing the record of proceedings for the Change Proceedings; c Assisting in the drafting and preparation of the Bond Amendments and the Secondary Market Disclosures; d Participating in meetings and other conferences scheduled by the City or the Lessee, e Consulting with the City Attorney concerning any legislation or litigation which may affect the Change Proceedings, the Bond Amendments and the Secondary Market Disclosures, f Consulting with any trustee or fiscal agent for the Bonds; and g Rendering opinions as to the validity of the Bond Amendments. B. Special Services "Special Services" are defined for purposes of this Agreement as services in addition to the services outlined in Section LA above Special Services will include, but not be limited to, any work after the Change Proceedings, the Bond Amendments and the Secondary Market Disclosures have been completed or additional services unrelated to those services outlined in Section LA above. Special Services must be authorized in writing by the Director of Finance or the City Attorney. 2. COMPENSATION For the services to be rendered under Section 1 A or 1 B Bond Counsel will be paid fees at the hourly rates set forth in Exhibit A. Such fees will be billed monthly and shall be payable by the City within thirty (30) days following the receipt of each invoice. Bond Counsel shall be DOC SOC/1732652v 1/022273-0008 Stradling Yocca Carlson&Rauth Page 3 of 6 reimbursed for the actual costs of any out-of-pocket expenses reasonably incurred in connection with the services provide under Section LA or any requested special services. Bond Counsel and the City hereby agree that Bonds Counsel's fees for the services provided under Section LA above shall not exceed$30,000. 3. PERSONNEL AND CONTRACT ADMINISTRATION City agrees to accept and Bond Counsel agrees to provide the aforementioned services primarily through Brian Forbath, Lawrence Chan and Carol L. Lew. It is agreed that Mr. Forbath shall be the attorney who will provide the primary services under this Agreement If any one of the above attorneys is unable to provide such services due to death, disability or similar event, Bond Counsel reserves the right to substitute another of its attorneys, upon approval by the City Attorney, or his designee, to provide such services, and such substitution shall not alter or affect in any way Bond Counsel's or the City's other obligations under this Agreement. This Agreement will be administered by the Director of Finance, or her designee. 4. TERMINATION A This Agreement may be terminated without cause by the City or Bond Counsel upon thirty (30) days' advance written notice to the other parry. Such notification shall state the effective date of the termination of this Agreement B Bond Counsel reserves the absolute right to withdraw from representing the City if, among other things, the City fails to honor the terms of this Agreement, the City fails to cooperate fully or follow Bond Counsel's advice on a material matter, or any fact or circumstance occurs that would, in Bond Counsel's view, render its continuing representation unlawful or unethical. If Bond Counsel elects to withdraw, the City will take all steps necessary to free Bond Counsel of any obligation to perform further services, including the execution of any documents necessary to complete such withdrawal, and Bond Counsel will be entitled to be paid at the time of withdrawal for all services rendered and costs and expenses paid or incurred on the City's behalf in accordance with the payment terms set forth in Section 2 above If necessary in connection with litigation,Bond Counsel would request leave of court to withdraw. C. Bond Counsel's representation of the City will be considered terminated at the earlier of(i)the City's termination of its representation, (ii)Bond Counsel's withdrawal from its representation of the City, or(iii)the substantial completion by Bond Counsel of its substantive work for the City. 5. ARBITRATION IN THE EVENT OF A DISPUTE REGARDING FEES, COSTS, OR ANY OTHER MATTER ARISING OUT OF OR RELATED IN ANY WAY WHATSOEVER TO BOND COUNSEL'S RELATIONSHIP WITH THE CITY, OR BOND COUNSEL'S OR THE CITY'S PERFORMANCE OF THIS AGREEMENT, INCLUDING THE QUALITY OF THE SERVICES WHICH BOND COUNSEL RENDERS, THE DISPUTE SHALL BE DETERMINED, SETTLED AND RESOLVED BY CONFIDENTIAL ARBITRATION IN THE COUNTY OF ORANGE, CALIFORNIA ANY AWARD SHALL BE FINAL, BINDING AND CONCLUSIVE UPON THE PARTIES, AND A JUDGMENT RENDERED THEREON MAY BE ENTERED IN ANY COURT DOCSOC/1732652v 1/022273-0008 Stradlmg Yocca Carlson&Rauth Page 4 of 6 HAVING JURISDICTION THEREOF. SHOULD YOU ELECT TO HAVE ANY FEE DISPUTE ARBITRATED PURSUANT TO NONBINDING ARBITRATION UNDER STATUTORY OR CASE LAW, THEN SUCH NONBINDING ARBITRATION SHALL DETERMINE ONLY THE ISSUE OF THE AMOUNT OF FEES PROPERLY CHARGEABLE TO YOU. ANY OTHER CLAIMS OR DISPUTES BETWEEN US, INCLUDING CLAIMS FOR PROFESSIONAL NEGLIGENCE, SHALL REMAIN SUBJECT TO BINDING ARBITRATION PURSUANT TO THIS AGREEMENT. Arbitration may be demanded by the sending of written notice to the other party. If arbitration is demanded, within 20 days of the demand the City shall present a list of five qualified individuals who would be willing to serve that the City would find acceptable to act as arbitrator. To serve as arbitrator, the individual must be a retired judge having served on any federal court or the California Superior Court or higher court in the State of California. Within 20 days of receiving the City's list, Bond Counsel may at its sole discretion (i) select any individual from that list and that individual shall serve as the arbitrator, or(ii)propose its own list of five individuals for arbitrator. If Bond Counsel chooses to present a separate list, the City may within 20 days select any individual from that list and that person shall serve as arbitrator. If no arbitrator can be agreed upon at the end of this process, the City and Bond Counsel each shall select one individual from its own list and those two persons shall jointly select the arbitrator. The arbitration shall be conducted pursuant to the procedures set forth in the California Code of Civil Procedure §§ 1280 et seq., and in that connection you and we agree that § 1283.05 thereof is applicable to any such arbitration. Nothing herein shall limit the right of the parties to stipulate and agree to conduct the arbitration pursuant to the then-current rules of the American Arbitration Association, the Judicial Arbitration & Mediation Services, or any other agreed-upon arbitration services provider. Notwithstanding any of the foregoing, the City shall be entitled to opt out of the arbitration provisions contained in this Section. 6 MISCELLANEOUS A Bond Counsel and the employees of Bond Counsel, in performance of the Agreement, shall act in an independent capacity and not as officers or agents of the City. B Without the written consent of the City, this Agreement is not assignable by Bond Counsel in whole or in part. C No alteration or variation of the terms of this Agreement shall be valid unless in writing and signed by the parties hereto, and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. D. In accordance with the requirements of California Business and Professions Code § 6148, Bond Counsel advises the City that the firm maintains professional errors and omissions insurance coverage applicable to the services to be rendered to the City. DOCSOC/1732652v 1/022273-0008 Stradling Yocca Carlson&Rauth Page 5 of 6 This Agreement is executed on this day of December, 2015, and effective as of December 15, 2015 CITY OF HUNTINGTON BEACH: /0' . J, �" Lj— Vv- LORI ANN FARRELL,Finance Director ATTEST v/ City Cler (seal) STRADLING YOCCA CARLSON &RAUTH By: Brian Forbath Title: ShareholderNice President APPROVED AS TO FORM MIC L GATES, City Attorney IiAKIT r rn �- C C) ca ` cz CJ'i w DOCSOC/1732652v 1/022273-0008 EXHIBIT A Shareholders $575 Associates $310 Paralegals $165 A-1 DOCSOC/1732652v 1/022273-0008 CERTIFICATE OF INSURANCE Number 1953 This certificate is issued as a matter of information only and confers no rights upon the certificate holder. This certificate does not amend or alter the coverage afforded by the policy described below. INSURED: Stradhng Yocca Carlson&Rauth 660 Newport Center Drive Newport Beach,CA 92660 Federal ID# 95-3347002 INSURER: Attorneys Insurance Mutual Risk Retention Group, Inc COVERAGE: This is to certify that the policy of insurance listed below has been issued to the Insured named above for the period indicated Notwithstanding any requirement,term or condition of any contract or other document with respect to which this certificate may be issued or may pertain,the insurance afforded by the policy described herein is subject to all terms,exclusions and conditions of such policy The limit shown may have been reduced by paid claims TYPE OF INSURANCE: Professional Liability POLICY NUMBER: IP-0000-18/2015 POLICY PERIOD: July 1,2015 to July 1,2016(12 01 a in) LIMIT: A minimum of$10,000,000 per claim and in the aggregate including defense costs excess of a self-insured retention See attached schedule CANCELLATION: Should the above described policy be canceled before the expiration date thereof,the issuing company will mail 30 days written notice to the certificate holder named below Failure to mail such notice shall impose no obligation or liability of any kind upon the company,its agents or representatives CERTIFICATE City of Huntington Beach MOLDER: Finance Department 2000 Main Street Huntington Beach, CA 92649 ISSUED BY: Attorneys Insurance Mutual Risk Retention Group, Inc DATE ISSUED: July 1,2015 AUTHORIZED REPRESENTATIVE Amethyst Captive Insurance Solutions, Inc CERTIFICATE OF INSURANCE Attachment to Certificate No. 1953 Laver Limit Insurer Primary $1 million each claim and in the Attorneys Insurance Mutual Risk aggregate Retention Group, Inc First Excess $9 million each claim and in the Lexington Insurance Co,Nautilus aggregate Insurance Company, Scottsdale Insurance Co, Starr Surplus Lines Insurance Company,and Pioneer, each for their respective percentages AUTHORIZED REPRESENTATIVE Amethyst Captive Insurance Solutions, Inc.